Woerz v. Rosenfeld , 185 N.Y.S. 96 ( 1920 )

Greenbaum, J.:

Plaintiff at the time of the accident on January 7, 1916, was nine years, eleven months old. Her mother was the janitress of the apartment house in question. While using and manipulating a dumbwaiter in the rear of the cellar, which was a considerable distance removed from the living quarters of her parents, the plaintiff was seriously injured. The evidence is undisputed that the accident occurred in the performance of work in assisting her mother, who with her husband alone was authorized to use the dumbwaiter in' the cellar in order to remove garbage for the various tenants in the house. In other words, the child was injured while engaged in removing garbage cans for the tenants, a duty which devolved upon her parents. Defendants had no knowledge whatever of the fact that the plaintiff was permitted to perform any such work. The Labor Law (§§ 161, 162, as amd. by Laws of 1915, chap. 386, and Laws of 1911, chap. 866) forbids a child under the age of fourteen years to work in connection with an apartment house. Besides, the mother"in delegating her duties to the child acted outside of the scope of her agency. For such an unauthorized act on the part of the mother the principals cannot be held liable. The facts disclosed upon the trial bring the case clearly within the rule applied in Goldberg v. Borden’s Condensed Milk Company (185 App. Div. 222; affd., 227 N. Y. 465) and Rolfe v. Hewitt (Id. 486).

The judgment must be reversed and the complaint dismissed, with costs and disbursements.

Clarke, P. J., Laughlin, Dowling and Merrell, JJ., concur.

Judgment and order reversed, with costs. Complaint dismissed, with costs.